The Court today issued several opinions on noteworthy issues, including cases of first impression involving the Child Protective Services Law and Act 13. The Court also continued its reexamination of the exceptions to sovereign immunity for tort claims against the government, a trend we pointed out last year as part of our post about the William Penn School District decision.

In an opinion announcing the judgment of the Court, Justice Donohue, joined by Justices Baer and Wecht, concluded that based on the language of the Child Services Protective Law (CPSL) that a mother cannot be found to have committed child abuse against her newborn for using drug use while pregnant.

Chief Justice Saylor’s brief concurring opinion, in which Justice Dougherty joined, said simply: “In terms of plain meaning, I believe the Superior Court’s interpretation is reasonable in light of the two-year statutory lookback period. Nevertheless, I also find sufficient ambiguity to apply the principles of statutory construction, and on that basis I concur in the result.” Justice Dougherty concurred in the result and in the Chief Justice’s opinion but wrote separately “to emphasize the ambiguous nature of the applicable statutory text which, as exemplified by the divergent conclusions expounded by my colleagues on this Court and the lower tribunals, may result in reasonable minds reaching disparate interpretations.”

Justice Mundy, joined by Justice Todd, dissented and would hold that “The term ‘child abuse’ shall mean intentionally, knowingly or recklessly . . . [c]ausing bodily injury to a child through any recent act or failure to act.” 23 Pa.C.S. § 6303(b.1)(1). A recent act is defined as “[a]ny act or failure to act committed within two years of the date of the report to the department or county agency.” Id., § 6303(a).” Therefore, according to the dissent, “[b]ecause Mother caused bodily injury to L.J.B. through a recent act, Mother perpetrated child abuse. Id. (defining perpetrator as “[a] person who has committed child abuse as defined in this section”).”

In appeals by the PUC from two decisions by Commonwealth Court interpreting whether the impact fee imposed under Chapter 23 of the Oil and Gas Act (Act 13) applies to Marcellus Shale producers if production at a particular well exceeds 90,000 cubic feet of gas per day for one month versus every month of the year, Justice Todd joined by the Chief Justice and Justices Donohue and Dougherty reversed Commonwealth Court and reinstated the PUC’s order, holding that “under the relevant provisions of Act 13, the impact fee will be imposed on such wells if their production exceeds 90,000 cubic feet of natural gas per day for even one month of the year.”

Justice Wecht, joined by Justice Baer, concurred in the result, opining that the majority’s statutory construction analysis is sound, but expressing doubt over the use of prior drafts of Act 13, excessive deference to administrative agency statutory interpretation and reliance on policy based concerns.

Justice Mundy dissented and would hold that the term “any” in Act 13 is not ambiguous such that resort to Statutory Construction Act factors to discern the legislative intent is unnecessary.

The Court, per Justice Todd joined by the Chief Justice and Justices Baer, Donohue, Dougherty and Mundy, found that as to a school district gym wall which lacked padding such that a student who ran into the wall was injured, the lack of padding may constitute negligence in the care, custody, and control of real property and thus falls within the Act’s real estate exception, affirming Commonwealth Court.

Justice Wecht concurred that the Act did not immunize the school district for the unpadded wall, but wrote separately to opine that the Court’s decision in Mascaro v. Youth Study Center, 523 A.2d 1118 (Pa. 1987), which the majority distinguished, should instead be overruled because “contravenes the plain wording of the Act, has forced distortions in our decisional law for decades, and should be recognized as error.”

About the Author:

Dennis A. Whitaker, partner at Hawke, McKeon & Sniscak, LLP, is an experienced litigator with over 25 years of Commonwealth service. Focusing on government appellate and original jurisdiction practice in state and federal courts, Dennis offers sound advice, creative solutions, and effective strategies to clients navigating the appeals process.

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